People v. Perez

• Decision Date: 04 August 2016
• Citation: 37 N.Y.S.3d 243,142 A.D.3d 410
• Parties: The PEOPLE of the State of New York, Respondent, v. Rafael PEREZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 410

37 N.Y.S.3d 243

The PEOPLE of the State of New York, Respondent,

v.Rafael PEREZ, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Aug. 4, 2016.

Seymour W. James, Jr., The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant.

Rafael Perez, appellant pro se.

Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.

MAZZARELLI, J.P., SWEENY, MANZANET–DANIELS, GISCHE, KAHN, JJ.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 29, 2006, convicting defendant, after a jury trial, of robbery in the first degree and violation of probation, and sentencing him, on the robbery conviction, as a second felony offender, to a term of 15 years, and on the violation of probation, to a concurrent term of 5 years, affirmed. Judgment, Supreme Court, Bronx County (John N. Byrne, J.), rendered March 7, 2005, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of six months, concurrent with five years' probation, modified, on the law, to the extent of vacating the sentence and remanding for a youthful offender determination, and otherwise affirmed.

Defendant was apprehended by police officers who were investigating a pattern of robberies inside a New York City Housing Authority (NYCHA) building by performing a "vertical patrol." The police had made prior arrests for narcotics and trespass at the building, and considered it a high-crime area. The officers were in plain clothes, with their shields displayed around their necks. As part of the investigation, the officers were knocking on residents' doors and conducting interviews.

While the officers were on the seventh floor, the elevator door opened. Several individuals exited the elevator, followed by defendant, who was wearing a black T–shirt over a yellowish-tan hooded sweatshirt with the hood up. Defendant took one step out of the elevator, but, apparently upon noticing the officers, went back into the elevator. When one of the officers said to him, "Can you hold the door, police, hold the door," defendant "kept pressing" the elevator button to close the door. The door closed and the elevator went up. According to the officer, defendant's behavior, coupled with the fact that the building entertained heavy narcotics traffic, motivated him and his colleagues to go up the stairs to verify that defendant belonged in the building. When the elevator did not stop on the eighth floor, the officers walked to the ninth floor and saw defendant in the hallway. One of the officers approached defendant, again identified himself as a police officer, and asked him if he lived in the building. Defendant did not respond, and turned and faced the wall with his head down and his hood up. Upon approaching defendant, the officer observed a bulge in the sleeve covering defendant's right arm, which defendant was holding stiffly "straight down" from his body with his hands hidden under his sleeves. He again asked defendant if he lived in the building, and again defendant did not respond. The officer then asked defendant if he had any weapons, and, when defendant remained silent, he directed him to show his hands. When defendant refused to comply, the officer repeated his direction "several times," but defendant would not cooperate. Concerned for his safety, the officer grabbed defendant's wrist area, where he felt a metal object. He then raised defendant's arm, pulled back his sweater, and observed the silver tip of a machete. Defendant was ordered to drop the machete, and again refused to comply. The officers removed the two-foot machete from his sleeve. Defendant was arrested, and $175 was recovered from him.

Around the same time, a police sergeant received a radio transmission describing a robbery that had occurred earlier that evening near the building where defendant had been arrested. The sergeant was informed that the complainant reported that he was robbed at the point of a machete by two males, one with a red jacket and the other with a black shirt over a yellow mustard hooded sweatshirt. While canvassing for suspects, the sergeant received a phone call from the officer who had arrested defendant in which the officer reported the arrest and defendant's possession of a machete. Upon hearing the description of defendant's clothing, which matched the description of the robbery suspect, the sergeant instructed the arresting officer to hold defendant at the scene until he arrived. He then picked up the complainant and transported him to outside the building where defendant had been arrested and was being held in the lobby. From within a police vehicle, and not having been informed that a machete was recovered or told that the person he would view matched the description he gave to police, the complainant, upon seeing the handcuffed defendant through the window of the building lobby, immediately identified defendant as the person who had robbed him.

Defendant, still handcuffed, was then placed in a police van and met by another officer, who asked him how he was doing. Defendant replied by saying that he knew he was "going up north" and that he would "tell you what you want" if he was given a sandwich. The officer transported defendant to the precinct, placed him in the debriefing room, and instructed two officers to get defendant a sandwich. When they returned with the sandwich 15 to 20 minutes later, the officer gave it to defendant.

Immediately, defendant stated that " [t]he other guy [you are] looking for" was in his apartment. The officer never questioned defendant and did not advise him of his Miranda rights.

Supreme Court denied defendant's motion to suppress. With regard to the stop and search of defendant, the court found that "all of the police actions were justified from their inception." The court concluded that defendant caused the officers to become suspicious when he stepped back into the elevator after observing them with their shields displayed and failed to comply with the direction to hold the elevator door. This, the court held, gave the officers the necessary predicate to follow defendant to the ninth floor and ask him if he lived in the building. The court further concluded that the arresting officer had a legitimate concern for his safety and a credible reason to believe defendant had a weapon, based on defendant's refusal to answer his questions, the manner in which he was holding his arm, and the bulge under his sleeve. The court found that once defendant refused to comply with the officer's direction to show his hands, the officer was justified in taking the added step of pulling back defendant's sleeve, which revealed the presence of the machete.

The court ruled that the showup was not suggestive because the sergeant who brought the complainant to the building where defendant was arrested did not reveal to the complainant that defendant possessed a machete and that defendant matched the complainant's description of his assailant to police. It noted that the complainant's immediate identification of defendant, without any prompting, indicated that the identification was not tainted by suggestiveness and was not the fruit of any unlawful police conduct. Regarding defendant's statements, the court held that while the People conceded custody, defendant was not interrogated and that his statements were completely spontaneous.

Defendant argues on appeal that his arrest was wrongful because the entire series of events that precipitated it was based on a misperception of behavior that was not inherently suspicious and that was consistent with his right to be left alone. The People maintain that the police officers had the right to question defendant based on his mere presence in the building, since it was a NYCHA building that was rife with trespassing and other illegal activity. In any event, the People contend that defendant's retreat into the elevator was sufficient to, at the very least, trigger their right to inquire, and that the actions by defendant that followed justified the officers' decisions to grab his arm and arrest him after discovering the machete.

In determining whether a police encounter with a member of the public is justified, we must consider all of the attendant circumstances (see People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 [1980] ; People v. Stephens, 47 A.D.3d 586, 588–589, 851 N.Y.S.2d 136 [1st Dept.2008], lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008] ). Here, one such circumstance was the fact that the building was owned by NYCHA and that the officers had a duty to keep it free of trespassers (see People v. Williams, 16 A.D.3d 151, 790 N.Y.S.2d 458 [1st Dept.2005], lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 265, 834 N.E.2d 1275 [2005] ). It is unclear from People v. Barksdale , 26 N.Y.3d 139, 20 N.Y.S.3d 296, 41 N.E.3d 1111 (2015), recently decided by the Court of Appeals, whether defendant's mere presence in the building gave rise to a level one inquiry under People v. De Bour , 40 N.Y.2d 210, 352 N.E.2d 562 (1976), since Barksdale specifically dealt with a private building registered in the trespass affidavit program. However, the officers did not testify that defendant's mere presence in the building caused them to suspect that he did not belong there; rather, it was that fact combined with his effort to prevent them from getting into the elevator with him. Even if the officers did not have an objective credible reason to question defendant based only on Barksdale, the building's trespass history, together with defendant's apparently panicked attempt to avoid contact with them upon their attempt to enter the elevator, gave the officers the right to inquire of defendant.

It is not insignificant that defendant actively evaded the officers' efforts to get into the elevator with him. Indeed, that is what distinguishes this case from People...